Saturday, July 31, 2010

The History of Habeas, Part V: 1789 as the High-Water Mark of English Habeas

In my last post on Paul Halliday's new history of habeas in pre-revolutionary England, I thought I'd end at the beginning. In INS v. St. Cyr in 2001, Justice Stevens wrote for the majority that, at a minimum, the Suspension Clause protects the writ of habeas corpus "as it existed in 1789." Ironically, perhaps paradoxically, Halliday's research suggests that those who object to the Supreme Court defining the scope of the Suspension Clause by reference to habeas only “as it existed in 1789” “may find that 1789 was no minimum at all"--that 1789, or the period around it, anyway, may well have been the high-water mark for the scope of English habeas.

Indeed, sprinkled throughout Halliday’s book are a number of statements about the scope of the writ, with the caveat “[a]t least until the 1790s.” Nothing particular happened in 1790, but as Halliday explains, a series of developments in the years and decades thereafter led to a significant decline in both the practical and legal significance of habeas corpus throughout the British Empire.

For example, Parliament enacted a series of suspension statutes arising out of England’s renewed wars with France between 1794–95 and 1798–1801, with the 1799 Suspension Act including provisions for stricter confinement of individual prisoners and unrelated authority for detention arising out of the rebellion then underway in Ireland. Thus, for the first time, Parliament used the pretext of suspension with regard to one emergency to justify detention arising out of another.

“Beginning in the 1790s,” though, “suspension became just one part of wider statutory campaigns against political dissent in all forms.” In 1793, Parliament enacted the Aliens Act, which imposed a series of new sanctions—including detention without bail or deportation—on foreigners, especially Frenchmen, who failed to comply with a series of new regulations. Parliament also enacted the Indemnity Act of 1801, which appeared to take jailers off the hook for claims of false imprisonment or other abuse arising out of suspensions, even past ones. In fine, “[t]he 1790s would mark the start of a legislative onslaught on liberties of every kind, a unified assault against which the writ proved almost powerless.” And even in the context of the writ’s territorial scope, Parliament would eventually preclude the justices from sending the writ into overseas colonies that had their own tribunals capable of issuing the writ, so providing in the Habeas Corpus Act of 1862. It may not have mattered to colonists in Australia or India that they could no longer seek relief from the justices in Whitehall, but in the larger context of whether the justices or Parliament had the last word when it came to habeas, every new statute seemed to tilt that question further in favor of the legislature.

There’s more to it. As Halliday explains, beginning in the 1790s, Lord Chief Justice Kenyon—who replaced Lord Chief Justice Mansfield upon the latter’s 1788 retirement—began pushing for more vigorous adherence to the rule against controverting the return, refused to settle cases, and otherwise retreated from the expansive nature of habeas practice under his predecessors. But separate from the personalities behind the bench, the short version is that the more Parliament intervened, the weaker the writ became. The 1862 example aside, it wasn’t that Parliament was formally interfering with the power of King’s Bench, but that it was vitiating the justices’ ability to do anything meaningful with that power. As Halliday laments, “[t]he logic of detention expanded as more people, regardless of their having performed any wrong previously known to law, became subject to forms of detention that barred judicial supervision.” Habeas weakened in England after 1790 because England had no Suspension Clause--no constraint on the circumstances in which Parliament could displace the efficacy of the writ.

The Supreme Court’s 1952 decision in United States v. Hayman is hardly part of our constitutional canon, and for good reason. In Hayman, the Court rejected an argument that 28 U.S.C. § 2255—enacted in 1948 to provide a statutory post-conviction alternative to habeas corpus for federal prisoners—violated the Suspension Clause, relying heavily on the fact that the statute itself allowed resort to habeas if the statutory substitute “is inadequate or ineffective to test the legality of his detention.”

What’s intriguing about Hayman isn’t Chief Justice Vinson’s opinion for the Court, but the brief filed on the merits by Hayman’s counsel—Harvard law professor Paul Freund. In particular, Freund’s brief devoted 18 pages to the argument that § 2255 was inconsistent with the Suspension Clause, relying on his own thorough discourse on the nature of habeas in pre-revolutionary England in support of his analysis. Freund’s brief captured in a nutshell many of the larger points at the heart of Halliday’s book—that habeas was primarily a common-law, and not statutory, remedy; that the Habeas Corpus Act of 1679 was a distraction; that the courts in the exercise of their common-law authority routinely issued the writ in cases in which contemporary commentators assumed it did not apply, including to collaterally attack convictions; that prisoners routinely were able to offer facts controverting the return; and that, in general, “the English practice was an evolving one, under continuous judicial and Parliamentary re-examination, and subjected to a series of liberalizing reforms by courts and legislature both before and after 1789.”

Freund was not arguing against the government’s view of the writ “as it existed in 1789,” though. Rather, he was arguing against any attempt to peg the writ to a defined historical moment. In his words, “[a]gainst this background of flux and empiric responsiveness, it would be mistaken in the extreme to try to capture the state of the law at a moment of time and identify it with the guarantee in the Constitution.”

In an important sense, Halliday appears to agree. Thus, as he notes in reference to the “as it existed in 1789” approach,

[a]s a matter of American jurisprudence, this might make sense, so long as this requirement is not taken to rest on a claim about history. But it does. Underlying the proposed standard is condescension: a belief that during later epochs, including our own, habeas corpus has more nearly reached its ideal form.

Ever the consummate and careful historian, though, Halliday offers no judgment on the normative appropriateness of tying the scope of the writ as protected by the Constitution to the scope of the writ in pre-revolutionary England at the Founding. Rather, the point of his project is to emphasize the care with which such tethering must take place, and the conventional assumptions that a thoroughgoing assessment of English history necessarily dispels. After completing Halliday’s manuscript, the reader should be left with little doubt as to what the “privilege of the writ of habeas corpus” entailed at the time the Constitution was drafted, and, as such, what the Constitution requires at a minimum. It remains for future generations, and not historians, to decide if the Constitution does—or should—protect anything more.